Citation Nr: 0725098
Decision Date: 08/13/07 Archive Date: 08/20/07
DOCKET NO. 06-02 598 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for a left knee
disability.
2. Whether new and material evidence has been received to
reopen a claim for service connection for a right knee
disability.
3. Whether new and material evidence has been received to
reopen a claim for service connection for a neck disability.
4. Whether new and material evidence has been received to
reopen a claim for service connection for a low back
disability.
5. Whether new and material evidence has been received to
reopen a claim for service connection for a bilateral leg
disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant, spouse
ATTORNEY FOR THE BOARD
M. Prem, Associate Counsel
INTRODUCTION
The veteran had over nine years active duty service ending in
June 1968.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2005 rating decision by a Regional
Office (RO) of the Department of Veterans Affairs (VA). A
notice of disagreement was received in September 2005, a
statement of the case was issued in December 2005, and a
substantive appeal was received in January 2006.
The veteran presented testimony at a Board hearing in
November 2006. A transcript of the hearing is associated
with the veteran's claims folder.
A December 2006 communication suggests that the veteran may
be seeking an increased rating claim for his service-
connected hearing loss. This matter is referred back to the
RO for appropriate action.
FINDINGS OF FACT
1. By rating decision in September 2002, the RO denied the
veteran's claims for service connection for disabilities to
his left knee, right knee, legs, neck, and low back; the
veteran filed a notice of disagreement, but a timely
substantive appeal was not received to complete an appeal
from that determination.
2. Evidence received since the September 2002 rating
decision does not, by itself or in conjunction with the
evidence previously assembled, raise a reasonable possibility
of substantiating the claim.
CONCLUSIONS OF LAW
1. The September 2002 rating decision that denied service
connection claims for disabilities to the veteran's left
knee, right knee, legs, neck, and low back is final. 38
U.S.C.A. § 7105 (West 2002).
2. Evidence received since the September 2002 rating
decision denying service connection for disabilities to the
veteran's left knee, right knee, legs, neck, and low back is
not new and material; accordingly, the claims are not
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), which has been
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a). Under the VCAA, VA has a duty to notify the
appellant of any information and evidence needed to
substantiate and complete a claim, and of what part of that
evidence is to be provided by the claimant and what part VA
will attempt to obtain for the claimant. 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002).
The United States Court of Appeals for Veteran Claims
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004), held, in part, that a VCAA notice, as required by 38
U.S.C.A. § 5103(a), must be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. This decision has since
been replaced by Pelegrini v. Principi, 18 Vet. App. 112
(2004), in which the Court continued to recognize that
typically a VCAA notice, as required by 38 U.S.C.A. §
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, the appellant filed
his application to reopen the claims for service connection
in February 2005. In March 2005, a VCAA letter was issued to
the appellant. This letter effectively notified the
appellant of what information and evidence is needed to
substantiate his claims, as well as what information and
evidence must be submitted by the claimant, what information
and evidence will be obtained by VA, and the need for the
claimant to submit any evidence in his possession that
pertains to the claims. Since the March 2005 VCAA notice
preceded the May 2005 RO rating decision, there is no defect
with respect to the timing of the VCAA notice.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
In the present appeal, the appellant was provided with notice
of what type of information and evidence was needed to
substantiate the claims, but there had been no notice of the
method by which the VA determines disability ratings and
effective dates. Despite the inadequate notice provided to
the appellant, the Board finds no prejudice to the appellant
in proceeding with the issuance of a final decision. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the appellant has been prejudiced thereby). The
Board notes that the RO did furnish the appellant a letter in
March 2005 in which it advised the appellant of what
information and evidence is needed to substantiate his
claims, what information and evidence must be submitted by
the claimant, what information and evidence will be obtained
by VA, and the need for the claimant to submit any evidence
in his possession that pertains to the claims. Since the
Board concludes below that there has been no new and material
evidence submitted with which to reopen the claims, any
questions as to the appropriate disability ratings and
effective dates to be assigned are rendered moot.
Moreover, the March 2005 VCAA letter that was sent to the
appellant advised him of the applicable laws and regulations,
and information and evidence necessary to reopen his claims.
The RO informed the veteran that new and material evidence
was required to reopen his claims. The RO advised the
veteran that, to be considered new, the evidence must be
submitted to VA for the first time and, to be considered
material, the evidence must relate to the specific issue
being appealed. See Kent v. Nicholson, 20 Vet. App. 1
(2006).
The VCAA also provides that VA has a duty to assist claimants
in obtaining evidence needed to substantiate a claim. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). As will be discussed
in detail below, the veteran's service medical records are on
file, as are post-service private medical records and VA
examinations. There is no indication of relevant,
outstanding records which would support the appellant's
claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).
For all the foregoing reasons, the Board concludes that VA's
duties to the appellant have been fulfilled with respect to
the issues on appeal.
New and Material Evidence
By rating decision in September 2002, the RO denied claims of
service connection for disabilities to his left knee, right
knee, legs, neck, and low back. The record shows that the
veteran did file a notice of disagreement to initiate an
appeal. However, he failed to complete the appeal by filing
a timely substantive appeal in response to a statement of the
case. The September 2002 rating decision therefore became
final. 38 U.S.C.A. § 7105(c). A claim which is the subject
of a prior final determination is not subject to revision
except on the receipt of new and material evidence. 38
U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.
The Board notes here that the May 2005 RO rating decision
denied the veteran's application to reopen all five of the
enumerated claims because it found that no new and material
evidence had been received. However, the December 2005
statement of the case states that the left knee disability
claim was reopened. The RO proceeded to deny the claim on
the merits. The RO did not reopen the veteran's service
connection claims for disabilities to the right knee, legs,
neck, and low back.
Regardless of the RO's determinations with regard to
reopening the claims, the Board is not bound by these
determinations and must nevertheless consider whether new and
material evidence has been received. Jackson v. Principi, 265
F.3d 1366 (Fed. Cir. 2001).
When a claim to reopen is presented, a two-step analysis is
performed. The first step of which is a determination of
whether the evidence presented or secured since the last
final disallowance of the claim is "new and material." See
Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc);
see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356,
1359-60 (Fed. Cir. 1998).
The provisions of 38 C.F.R. § 3.156 (which defines "new and
material evidence") were changed for claims filed on or
after August 29, 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified at 38 C.F.R. § 3.156 (2004)). The appellant's
application to reopen his claim was filed after August 29,
2001 (it was filed in February 2005); consequently, the
current version of § 3.156 applies. 38 C.F.R. § 3.156(a)
(2006) provides as follows:
New evidence means existing evidence not
previously submitted to agency
decisionmakers. Material evidence means
existing evidence that, by itself or when
considered with previous evidence of
record, relates to an unestablished fact
necessary to substantiate the claim. New
and material evidence can be neither
cumulative nor redundant of the evidence
of record at the time of the last prior
final denial of the claim sought to be
reopened, and must raise a reasonable
possibility of substantiating the claim.
Second, if VA determines that the evidence is new and
material, the VA may then proceed to evaluate the merits of
the claim on the basis of all evidence of record, but only
after ensuring that the duty to assist has been fulfilled.
See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc)
(discussing the analysis set forth in Elkins), overruled on
other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378
(Fed. Cir. 2000); Elkins, supra. The second step becomes
applicable only when the preceding step is satisfied. See
Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In
order for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material. If the
evidence is not material, the inquiry ends and the claim
cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314
(1999).
The veteran filed his original claims for service connection
in March 2002. He filed a service connection claim for a
right knee disability and stated that his other disabilities
(left knee, legs, back, and neck) were the result of his
right knee disability.
The RO denied the claims in a September 2002 rating decision.
At that time, the evidence consisted of the veteran's service
medical records. These records showed an injury to the
veteran's left knee that occurred in June 1967. He was
diagnosed with a medial collateral strain and contusion of
the left knee. He was placed in a cast on June 11, 1967 and
instructed to return in one week. The records reflected that
the veteran had his cast removed on June 23, 1967. A June 26
note reflects minimal effusion, and that he is "OK to start
on weights." A June 30 note shows some swelling. A July 7
note states that the veteran is "doing very well" and
instructed the veteran to return as needed. There are no
further treatment notes in the medical records. The service
medical records include a normal separation examination.
The remaining evidence at the time of the RO's September 2002
rating decision consisted of treatment reports from Boiling
Springs Chiropractic dated April 1997 through December 2001;
treatment reports from Dr. F.E.G. dated April 1999 through
January 2002; a November 2000 x-ray of the left knee showing
osteoarthritic changes; and correspondence from Dr. M.C. in
which he stated that the veteran's records dated 1976 through
1977 had been destroyed. The left knee claim was denied
because the evidence reflected that although the veteran
sustained a left knee injury, the injury did not result in
chronic disability (as evidenced by the normal separation
examination and lack of treatment records for decades after
service). The remaining claims were denied because there was
no evidence of any injuries to the veteran's right knee,
neck, legs, or back while the veteran was on active duty.
Evidence submitted since the September 2002 decision includes
VA outpatient treatment records dated November 2004 to
November 2006 reflecting left knee injections, a total right
knee replacement, a February 2006 diagnosis of gonarthritis
of both knees, and a past medical history of a cervical spine
osteophyte excision with fusion in 2003. Additional evidence
consists of lay statements by the veteran's relatives that
substantiate the veteran's complaints of pain. The remainder
of the new evidence consists of the testimony of the veteran
in which he stated that he was in a cast for longer than the
service medical records reflect; that he did not recall a
separation examination; that he underwent ten years of
treatment immediately after service; that he underwent neck
surgery in 1976; and that he is undergoing physical therapy
for his knees.
The Board finds that none of the newly submitted evidence
constitutes material evidence. The service medical records
still reflect a single injury (only to the left knee) that
healed with limited treatment. At the time of the September
2002 rating decision, the RO had knowledge of the inservice
injury and also had knowledge that the veteran has arthritis
of the left knee. The RO's denial found that the inservice
injury did not result in chronic left knee disability. The
RO effectively found no causal relationship between the
inservice injury and the left knee arthritis shown by x-ray
in 2000.
None of the newly received evidence is competent to reopen
the claims. The statements by the veteran and his spouse
regarding a relationship to service cannot be considered
material because they have not been shown to be competent to
render opinions as to medical causation. In this regard,
although laypersons may testify as factual observations, the
question of whether a current disability is causally related
to service must be addressed by medical experts. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). The medical evidence
received since the 2002 rating decision does include
references to left knee symptoms as well as to other of the
disabilities on appeal, but none of the newly received
medical evidence suggests a nexus to service. In other
words, the new evidence only reflects the veteran's current
disabilities, without any additional evidence that would
support of grant of service connection.
The Board finds that that the new evidence does not relate to
an unestablished fact necessary to substantiate the claim; it
is cumulative and redundant; and by itself or in conjunction
with the evidence previously assembled, does not raise a
reasonable possibility of substantiating the claims.
Accordingly, the claims for service connection for
disabilities to the left knee, right, knee, legs, neck, and
low back are not reopened.
ORDER
As new and material evidence has not been received, the
claims of service connection for a left knee disability, a
right knee disability, a neck disability, a low back
disability, and a bilateral leg disability are not reopened.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs